Inuit continue court battle against Harper government over broken ‘promises’

From the first year it came to power, the Harper government has been battling Inuit over allegations it has broken the promises that gave birth to Nunavut.

 Jorge Barrera
APTN National News
From the first year it came to power, the Harper government has been battling Inuit over allegations it has broken the promises that gave birth to Nunavut.

While Prime Minister Stephen Harper has praised Inuit cabinet minister Leona Aglukkaq’s work representing the interests of Nunavut at the cabinet table, Justice Canada lawyers have been battling the Inuit in the courts over the past eight years.

The Inuit allege that since they signed an agreement with Canada that gave birth to Nunavut, Ottawa has walked away from the agencies it agreed to fund. Those agencies take care of key programs such as adequate housing, employment and impact benefit agreements.

“The promises made to the Inuit … have not been fulfilled,” said the original statement of claim filed by Nunavut Tunngavik Inc., the land claims organization crated to represent Inuit interests.

NTI launched the $1 billion court action against Ottawa alleging 16 breaches to the land claim agreement and 13 breaches of the Crown’s fiduciary obligation to the Inuit. The court action began in December 2006, the same year the Harper government took power.

Since then, according to the court record, Justice Canada lawyers have allegedly used misdirection and delay tactics to frustrate the Inuit’s case.

Just last month, a Nunavut judge rapped Ottawa’s knuckles in ordering the federal government to turn over documents to NTI as part of the case. Justice Canada lawyers had argued their document disclosure pace was slow because the federal government doesn’t have the resources to go through the files and identify which ones were covered by cabinet confidence.

Nunavut Court of Justice Judge Earl Johnson called out Ottawa on its excuse.

“Canada knew it would be claiming the cabinet privilege for some time,” said Johnson, in his Nov. 10 ruling. “Nevertheless by November 28, 2013, some seven years after the filing of the statement of claim, the (Privy Council Office) had not even started to review the documents that might subject to the claim of cabinet secrecy.”

Johnson also called out Justice Canada for slowing down the process of disclosure by casting too wide a net over documents that could contain cabinet confidences.

The judge said in his ruling that the Privy Council Office (PCO) had been given about 2,048 documents to review and that 1,081 of those documents did not contain cabinet confidences.

“In other words, PCO counsel have determined that over half of the 2,048 documents provided to PCO counsel by (Justice Canada) do not contain cabinet confidences,” said Johnson. “These facts demonstrate that (Justice Canada is) imposing a very conservative filter in setting aside relevant documents for potential review by the Clerk. One consequence of this approach is that documents are being produced much later than they should have been.”

In addition to this, Justice Canada said it discovered that some of the documents may have also included “other potential privileges,” causing further delay.

“Canada has only produced 613 documents because (Justice Canada) did not consider other potential privileges when vetting the documents,” said Johnson. “The rational for the claim of privilege has not been provided…to this date.”

Johnson ordered Ottawa to provide document list and documents by Jan. 9, 2015. If some of the documents are cabinet confidence, Johnson said the certificate indicating as such should also be provided on the same day.

This is not the first time Canada has been accused of sitting on documents. It’s a recurrent theme. Courts have forced the federal government to turn over documents to the Truth and Reconciliation Commission and to residential school survivors in the particularly controversial St. Anne’s case involving Justice Canada sitting on police evidence that would have helped residential school claimants.

Ottawa has also tried to deflect its responsibilities in the Nunavut land claim agreement which was signed by former prime minister Brian Mulroney and the Inuit on May 25, 1993. The federal government has dragged the Nunavut government into the case.

In September 2007, Canada went the Nunavut Court of Justice trying to force NTI to add the Nunavut government as a defendant, but lost. Canada appealed the ruling and lost again. Justice Canada also filed a third-party claim in May 2008 against the Nunavut government arguing that if Ottawa lost the case, the Nunavut government should also be on the hook.

The Nunavut government denies it shares any responsibility with Ottawa for the implementation of the land claim agreement because it didn’t exist at the time of its negotiation. Nunavut came into being in 1999.

A hearing on the third-party claim is scheduled for March 2015.

According to NTI’s statement of claim, negotiations between NTI and the federal Aboriginal Affairs department fell apart in 2004, while the Liberal government of Paul Martin was in power. On Nov. 5, 2004, the department wrote NTI “advising it that (Aboriginal Affairs) had exhausted the mandate available to it.”

The federal government then refused NTI’s request to enter into arbitration, which is an option written into the land claim agreement.

“The Crown has refused to consent to arbitration,” said the statement of claim. “The Crown has unilaterally determined whether and in what amount to fund the implementation of those benefits promised to Inuit in the agreement that are dependent on government initiatives and activities…the Inuit of Nunavut have been deprived of a meaningful opportunity to secure the full performance of the promises made to them in the agreement.”

Nothing changed despite Prime Minister Stephen Harper assuming power and the Inuit went to court.

In its statement of defence, filed in 2007, Ottawa denied all of NTI’s allegations.

Aglukkaq was elected in 2008 and was sworn in as Health Minister.

The court action continued.

Aglukkaq’s office did not respond to questions on the Inuit environment minister’s efforts on trying to help settle the dispute between the Inuit and Ottawa.

Aboriginal Affairs Minister Bernard Valcourt’s office did not return request for comment.

An NTI spokesperson said the organization wouldn’t comment.

The Nunavut government also said they wouldn’t comment on an ongoing court case.

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